In re Jayden L. CA2/7 ( 2023 )

Filed 5/16/23 In re Jayden L. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re JAYDEN L. et al., Persons B317448
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct.
No. 21CCJP03607A-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
VANESA N. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Mary E. Kelly, Judge. Appeal dismissed.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant Vanesa N.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant Tariq L.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey M. Blount, Senior Deputy
County Counsel, for Plaintiff and Respondent.
_________________________________
Vanesa N. and Tariq L., the parents of now-two-year-old
Havery L., six-year-old Alyna L. and nine-year-old Jayden L.,
appeal the jurisdiction findings on which the juvenile court based
its disposition orders declaring the children dependents of the
juvenile court and placing the children under the supervision of
the Los Angeles County Department of Children and Family
Services while allowing them to remain in the home with family
maintenance services. Before Vanesa and Tariq filed their
opening briefs, the juvenile court terminated its jurisdiction and
released the children to their parents, finding the conditions that
had justified the initial assumption of jurisdiction under Welfare
and Institutions Code section 3001 no longer existed and were not
likely to exist with the withdrawal of court supervision.
The juvenile court’s termination of jurisdiction moots this
appeal: We cannot provide either parent with effective relief—
that is, relief that “‘can have a practical, tangible impact on the
parties’ conduct or legal status.’” (In re D.P. (2023) 14 Cal.5th
266, 277.) Nonetheless, contending that the juvenile court’s
adverse jurisdiction findings could prejudice her in future
dependency or family law proceedings—speculative claims of
potential future harm the Supreme Court expressly held were not
sufficient to avoid mootness (id. at p. 278)—and that the appeal
concerns issues of broad public interest capable of repetition,
1 Statutory references are to this code unless otherwise
stated.
2
Vanesa urges us to exercise our discretion to decide the merits of
the moot appeal.2 We decline to do so and dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Havery’s Injuries
Vanesa was bathing seven-month-old Havery on the
morning of June 19, 2021 when she found a “soft spot” on the
child’s head. Vanesa took Havery to a hospital for a medical
examination. A CT scan showed the child had sustained a right
parietal linear fracture and a right parietal subdural hematoma.
An unnamed source reported to the Department that Havery’s
injuries were typical when a child falls. Havery’s condition was
stable, and her injuries were anticipated to heal on their own.
Havery was discharged from the hospital on June 22, 2021.
Vanesa could not explain how Havery had sustained her
injuries. She indicated Havery generally liked to throw her head
backward and suspected that may have caused the injuries, even
though no one had noticed the child hit her head.
Vanesa had last bathed the child on June 17, 2021 and had
not felt any soft spots that day. The next day Vanesa had again
been home with Havery; but, because Vanesa had to pick up the
other two children, the paternal grandmother had watched the
child for a few hours. The paternal grandmother did not mention
any falls or accidents to Vanesa, and Vanesa denied there were
any incidents that could have caused the injuries while Havery
2 Tariq filed an opening brief joining Vanesa’s argument
regarding mootness and her request that we exercise our
discretion to consider the merits of her appeal even if moot, but
presented no additional grounds that would justify our doing so.
3
was in her care that day.3 Vanesa noticed the soft spot the
following morning.
For his part, Tariq did not know how Havery sustained her
injuries. He told the Department’s caseworker interviewing him
on June 21, 2021 that he was not going to make up a story to
appease medical professionals or the Department. Tariq said he
had called Havery and Alyna’s day care facility, which did not
report any fall having occurred.4
The physician from the child abuse and prevention team
who saw Havery opined the injuries could have resulted from a
fall, an accidental drop or the child being hit or shaken, but
added it was difficult to determine if there was any abuse
because the parents had no explanation for what happened. In
his clinic notes attached to a Department report, the doctor
stated, “At this time there is no accidental trauma history to
explain this injury, therefore we cannot rule out inflicted trauma
as the cause.” He also stated a report should be made to the
Department for concerns of “possible inflicted trauma.”
The Department believed the parents’ conduct exhibited
general neglect of the children because of circumstances that
3 When interviewed by the Department, the paternal
grandmother said she watched Havery for four hours on Friday
afternoon, June 18, 2020, while Vanesa picked up Jayden and
Alyna from school. Havery was fine during that time. The
paternal grandmother did not know what could have happened to
the child.
4 A Department social worker reported the camera at
Havery’s day care facility did not show her falling or an accident.
The day care director similarly denied Havery’s injuries had
occurred at the facility.
4
included the lack of any explanation for Havery’s injuries; the
child abuse doctor’s inability to rule out inflicted trauma and a
concern he had raised about the parents sending Havery back to
the same day care facility where the injuries may have occurred;
the parents declining a visit by a public health nurse despite the
seriousness of Havery’s injuries; and Tariq’s ongoing and
excessive marijuana use.
2. Tariq’s Substance Abuse
The juvenile court sustained a dependency petition in 2015
and removed Jayden from Vanesa and Tariq’s care based on
Tariq’s use of both methamphetamine and marijuana, Vanesa’s
unresolved history of illicit drug use and its findings that the
parents had been under the influence of illicit drugs while Jayden
was in their care and that their drug use rendered Vanesa and
Tariq incapable of providing regular care and supervision of the
child. The court terminated its jurisdiction in this prior
proceeding in January 2017 after Jayden had been returned
home and Vanesa and Tariq successfully completed their court-
ordered programs.
During the Department’s investigation following the report
of Havery’s injuries in June 2021, Vanesa acknowledged Tariq
smoked marijuana “in the morning, before work, and at night,”
and sometimes kept marijuana in his car or his “safe box.”
Although Tariq might “take a hit three times a day of his pen,”
Vanesa believed Tariq did not smoke much, and she expressed no
concern about his marijuana use. She insisted Tariq did not use
marijuana when he took care of the children.
During interviews with Department caseworkers, Tariq
stated he smoked marijuana “a couple times a day,” explaining he
smoked it “in the morning, after work, and at night.” He also
5
admitted he sometimes used marijuana when going to the store,
being out with friends or taking a walk. He denied using the
drug around the children or being under the influence of the drug
while he was responsible for them. Despite his daily marijuana
use, Tariq believed marijuana was not a necessity for him and
that he could stop at any time. He denied having a marijuana
addiction and thought he did not smoke marijuana “that much.”
Drug tests on June 24, 2021, taken at the request of the
Department, showed Tariq was positive for marijuana and
negative for other substances. Vanesa was negative for all
substances. Asked several months later whether he was willing
to test again to ensure his marijuana levels were low and there
was no need for concern, Tariq declined in the absence of a court
order.
3. The Sustained Dependency Petition
The Department filed a nondetention petition in August
2021 alleging in identical language pursuant to section 300,
subdivisions (a) (serious physical harm inflicted nonaccidentally),
(b)(1) (failure to protect) and (j) (abuse of sibling) that Havery
was medically examined, hospitalized and diagnosed with an
endangering condition, a right parietal linear fracture with
minimal right subdural hematoma, and that the parents did not
explain how the child sustained the injuries, which were
concerning for nonaccidental trauma and would not ordinarily
occur except as the result of “deliberate, unreasonable and
neglectful acts” by the parents, who had care, custody and control
of the child. Separate counts in the petition alleged pursuant to
section 300, subdivisions (b)(1) and (j), Tariq had a history of
substance abuse, including methamphetamine and marijuana
use, and was at the time a current abuser of marijuana, which
6
rendered him incapable of providing regular care and supervision
of the children; Tariq had a positive toxicology screen for
marijuana on June 24, 2021; Alyna and Havery were of such
young age as to require constant care and supervision; Tariq’s
substance abuse interfered with providing the children regular
care; Jayden was a prior dependent of the juvenile court due to
Tariq’s substance abuse; and Vanesa knew of Tariq’s substance
abuse and failed to protect the children by allowing Tariq to
reside in the children’s home and have unlimited access to them.
At the jurisdiction hearing on December 21, 2021 the
juvenile court dismissed the section 300, subdivision (a), count
alleging Havery’s injuries had been inflicted nonaccidentally,
indicating it did not find the child’s injuries to be either
deliberately or intentionally caused, but sustained the
subdivision (b)(1) and (j) counts that alleged the injuries resulted
from the parents’ unreasonable and neglectful acts.5 The court
also sustained the subdivision (b)(1) and (j) counts regarding
Tariq’s substance abuse and Vanesa’s failure to adequately
protect the children by allowing Tariq unlimited access to them.
5 As is frequently the case, the Department used identical
language—Havery’s injuries resulted from the parents’
“deliberate, unreasonable and neglectful” acts—to inconsistently
allege that the parents inflicted Havery’s injuries nonaccidentally
within the meaning of section 300, subdivision (a), and that her
injuries were the consequence of the parents’ neglect (failure to
protect) under section 300, subdivision (b)(1), which also placed
Havery’s siblings at risk under section 300, subdivision (j).
Because the court dismissed the subdivision (a) count alleging
nonaccidental infliction of serious physical harm, we construe its
order sustaining the petition to have struck the word “deliberate”
from the sustained findings.
7
Explaining its findings the court stated, “I agree that [Havery’s
injuries] might not be deliberate or intentional, but I don’t
understand why it wouldn’t be neglectful because the parents—in
the court’s view, this is exactly why we don’t want parents
smoking pot while they’re taking care of children. . . . [T]he
court’s concern is . . . that—you know, rather than intention or
deliberate, that they did something to crack the kid’s head open,
there’s certainly no evidence of that, but it certainly could have
been neglectful in the court’s view.”
At the disposition hearing the same day the court
determined there was insufficient evidence to remove the
children and left them in their parents’ physical custody under
the Department’s supervision. The court ordered, for both
parents, family maintenance services and participation in a
developmentally appropriate parenting program with family
preservation, and for Tariq random or on-demand drug testing.
DISCUSSION
1. Moot Dependency Appeals and Our Discretion To Decide
Them
The Supreme Court earlier this year in In re D.P., supra,
14 Cal.5th 266 explained the mootness doctrine and confirmed it
applied to dependency appeals: “A court is tasked with the duty
‘“to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.”’
[Citation.] A case becomes moot when events ‘“render[] it
impossible for [a] court, if it should decide the case in favor of
plaintiff, to grant him any effect[ive] relief.”’ [Citation.] For
relief to be ‘effective,’ two requirements must be met. First, the
8
plaintiff must complain of an ongoing harm. Second, the harm
must be redressable or capable of being rectified by the outcome
the plaintiff seeks.” (Id. at p. 276.)
In In re D.P., the juvenile court had terminated its
jurisdiction without issuing any order that continued to impact
the parents. (In re D.P., supra, 14 Cal.5th at p. 277.) In that
context, the Court held, “relief is effective when it ‘can have a
practical, tangible impact on the parties’ conduct or legal status.’
[Citation.] It follows that, to show a need for effective relief, the
plaintiff must first demonstrate that he or she has suffered from
a change in legal status. Although a jurisdictional finding that a
parent engaged in abuse or neglect of a child is generally
stigmatizing, complaining of ‘stigma’ alone is insufficient to
sustain an appeal. The stigma must be paired with some effect
on the plaintiff’s legal status that is capable of being redressed by
a favorable court decision.” (Ibid.) The Court gave as examples
of nonmoot challenges to jurisdiction findings cases in which a
jurisdiction finding affected parental custody rights, curtailed a
parent’s contact with his or her child or resulted in disposition
orders that continued to adversely affect a parent. (Id. at
pp. 277-278.) The Court expressly held, disapproving contrary
case law, that “speculative future harm” is not sufficient to avoid
mootness. (Id. at p. 278.)6
6 Specifically addressing the appellant father’s argument
that the challenged jurisdiction finding of neglect could result in
his inclusion in California’s Child Abuse Central Index (CACI)
(Pen. Code, § 11170), which carries several legal consequences,
the Supreme Court noted that, when a child protective agency
forwards a substantiated report of abuse or neglect to the
California Department of Justice for inclusion in CACI, it must
provide written notice to the person whose conduct was reported.
9
Despite its reaffirmation of the applicability of the
mootness doctrine to dependency appeals, the Supreme Court
emphasized that, even when a case is moot, courts may exercise
their “inherent discretion” to reach the merits of the dispute.
(In re D.P., supra, 14 Cal.5th at p. 282.) That discretion, the
Court explained, is generally exercised only when the case
presents an issue of broad public interest that is likely to recur,
when there may be a recurrence of the controversy between the
parties or when a material question remains for the court’s
determination. (Ibid.)
Nevertheless, because features of dependency proceedings
tend to make appeals prone to mootness problems, the Court,
without intending to be exhaustive, identified several additional
factors for the courts of appeal to evaluate when deciding
whether discretionary review of a moot case may be warranted
outside of those instances. (In re D.P., supra, 14 Cal.5th at
pp. 284-286.) First, a court may analyze whether the challenged
jurisdiction finding could potentially impact the current or future
dependency proceedings, for example, by influencing the child
protective agency’s decision to file a new dependency petition or
the juvenile court’s determination about further reunification
services. (Id. at p. 285.) Second, a court may take into account
the nature of the allegations against the parent: “The more
egregious the findings against the parent, the greater the
(In re D.P., supra, 14 Cal.5th at p. 279.) Absent evidence in the
record that any such report had been submitted or a showing that
the type of neglect allegation at issue in the case (“general
neglect,” rather than “severe neglect”) was even reportable, the
Court held, “Father’s CACI claim is too speculative to survive a
mootness challenge.” (Id. at p. 280.)
10
parent’s interest in challenging such findings.” (Id. at p. 286.)
Third, a court may consider whether the case became moot due to
prompt compliance by parents with their case plan: “It would
perversely incentivize noncompliance if mootness doctrine
resulted in the availability of appeals from jurisdictional findings
only for parents who are less compliant or for whom the court has
issued additional orders.” (Ibid.)
2. Discretionary Review of This Moot Appeal Is Not
Warranted
The juvenile court terminated its jurisdiction with a simple
order releasing Jayden, Alyna and Havery to their parents. No
custody or visitation orders were made, nor did the court issue
any other order with continuing effect or that directly impacted
Vanesa’s or Tariq’s legal status. The claims of possible future
harm—all entirely speculative7—are insufficient to avoid
mootness. (In re D.P., supra, 14 Cal.5th at p. 278.)
7 In addition to asserting the adverse jurisdiction findings
might prejudice her in future dependency or family law
proceedings, Vanesa contends, without elaboration, that the
findings could negatively impact her employment because the
Department will be required to make a CACI report to the
California Department of Justice. As discussed, however, if the
Department had forwarded a substantiated report of abuse to the
California Department of Justice for inclusion in CACI, it would
have provided written notice to Vanesa. (See In re D.P., supra,
14 Cal.5th at p. 279.) But Vanesa does not claim, let alone show,
that any report was submitted, nor does she identify any current
or future employment opportunity a CACI listing would
jeopardize. As in In re D.P., the CACI claim is “too speculative to
survive a mootness challenge.” (Id. at p. 280.)
11
Although Vanesa and Tariq’s appeal was mooted by an
order terminating the juvenile court’s jurisdiction entered only
nine months after the dependency petition was filed, indicating
that, despite some initial reluctance, they had fully complied with
their case plans, no other factor justifies the exercise of our
discretion to consider the merits of their moot appeal. (See In re
D.P., supra, 14 Cal.5th at p. 286 [“no single factor is necessarily
dispositive of whether a court should exercise discretionary
review of a moot appeal”].) First, the findings against Vanesa
and Tariq were not egregious. The juvenile court dismissed the
count alleging Havery had been the victim of nonaccidental
infliction of serious physical injury, sustaining only the failure-to-
protect counts relating to Havery’s injuries and Tariq’s extensive
use of marijuana and the related sibling-endangerment counts.
In the context of sustained dependency petitions, none of those
sustained counts suggests either parent was guilty of such severe
misconduct as to justify the consideration of a moot appeal.
More significantly, the historical facts underlying the
jurisdiction findings are not in dispute. Infant Havery suffered
serious injuries while in the custody of Vanesa and Tariq; they
provided no explanation (innocent or otherwise) of what took
place; and nothing in the record supported an inference the
injuries occurred while Havery was at the childcare facility or
being watched by her grandmother. And Tariq admitted to
frequent daily use of marijuana. While the parents challenged
the juvenile court’s conclusion these facts created a substantial
risk of serious physical harm for their young children, as
necessary under section 300, subdivisions (b)(1) and (j), even if we
were to agree and reverse one or more of those findings, the
negative information that was the evidentiary basis for those
12
conclusions would be available to the Department or the court in
any future dependency or family law proceedings. (See, e.g., In re
N.S. (2016) 245 Cal.App.4th 53, 63 [even if the court were to
reverse the juvenile court’s jurisdiction findings, the underlying
facts that N.S.’s parents were arrested twice in connection with
activity at a home that was a marijuana grow house “would
almost certainly be available in any future dependency
proceedings, as would the facts that Mother moved out of the
grow house, took prompt and positive steps to reunite with N.S.,
and quickly regained custody of her child”].)
Finally, contrary to Vanesa’s argument in her reply brief,
this fact-specific appeal presents no issue of broad public interest.
(See In re Rashad D. (2021) 63 Cal.App.5th 156, 159 [fact-specific
question whether the mother’s current circumstances created a
substantial risk of serious physical harm to her young son is the
type of issue presented to appellate courts multiple times every
year]; In re M.C. (2011) 199 Cal.App.4th 784, 802 [deciding issues
of statutory interpretation and separation of powers despite
mootness, but declining to address whether sufficient evidence
supported juvenile court order because that was “not an issue of
continuing public importance”].)
13
DISPOSITION
Vanesa and Tariq’s appeal is dismissed as moot.
PERLUSS, P.J.
We concur:
SEGAL, J.
FEUER, J.
14